Appeals

• Author: Stephen Coughlan
• Profession: Professor of Law. Dalhousie University
• Pages: 351-376

351

CHA PTER 12

APPE ALS

A. INTRODUCTION

Rights of appeal in the Canadian criminal justice system are entirely a

creature of statute. Various appeal provisions are set out in the Criminal

Code, and in addition the Code provides that only appeals authorized in

Parts XXI and XXVI ca n be brought with regard to indictable offences.1

In fact, however, that has not operated to completely restrict the meth-

ods of review of decisions of the lower courts.

First, applications for extraordinary remedies such as certiorari can

be brought in some cases, though the scope of such applications is more

limited than an appeal (see the discussion of t his i ssue in Chapter 9).

In addition, in some unusual circumstances an appeal to the Supreme

Court might be p ossible through section 40 of the Supreme Court Act.2

In Dagenais v. Canadian Broadcasting Corp. the Court held that a literal

interpretation of section 674 of the Code would exclude relying on sec-

tion 40, a nd that such a literal interpretation could not be adopted.3

In that c ase, section 40 was u sed to allow a third party (the media) to

appeal a publication ban, an appeal that would not have been possible

under any of the Co de’s appeal provisions. See also R. v. Laba, where

section 40 per mitted the Crow n to appeal a ruling that overturned a

1 Section 674.

2 R.S.C. 1985, c. S-26.

3 Dagenais v. Canadian Broad casting Corp., [1994] 3 S.C.R. 835.

CRIMIN AL PROCEDURE352

reverse onus provision in the Code, even though they had been success-

ful in the result at the Court of Appeal. In effect, the Crown was appeal-

ing a case that it had won.4 The provision is sometimes used in cases

where an appeal of an interlocutory order is in issue, such as when a

third part y challenges an order for production of privileged communi-

cations, as in R. v. McClure or R. v. Brown.5 In the latter case, the Court

noted that such appeals reach it without having been considered by any

court of appeal, which denies the Court the benef‌it of a fuller record,

and input from that lower court. They suggested that this gap in the

Code’s appea l provisions was anomalous and an “un necessary encum-

brance” that should be f‌ixed by Parliament.6

The focus of this chapter, however, will be on the statutory appeal

powers set out in t he Criminal Code itself. Although some issue s, such

as time lim its and procedures, are set by rules of court,7 for the most

part the Code determine s what can and cannot be done.

The Code creates separate sets of rules for appeals of indictable of-

fences and of summar y conviction offences. However, as a matter of

convenience it does permit the appeal of a sum mary conviction matter

to be heard along w ith that of an indictable offence where the two of-

fences were tried together.8 In the case of indictable offences, different

appeal rights are given to an accused and the Crown. For summary

conviction offences, on the other hand, the appeal rights are essentially

parallel. The Code provisions deal with appeals of the result in the trial,

as well as f‌ind ings that a person is not criminally responsible or is not

f‌it to stand trial, as well as appeals of sentence. It is the f‌irst of these

that is of primary interest in th is chapter.

B. APPEALS OF INDICTABLE OFFENCES

1) Appeals by the Accused

a) Overview of Appeal Provisions

At f‌irst glance, it would appear that an accused appeali ng a conviction

has an enormously broad right of appeal. Section 675(1)(a) says t hat a

person can appeal a conviction based on a question of law alone, (with

leave of the court of appeal) on a question of f act, on a mixed ques-

4 R. v. Laba, [1994] 3 S.C.R. 965.

5 R. v. McClure, 2001 SCC 14; R. v. Brown, 2002 SCC 32 [Brown].

6 Brown, ibid. at para. 110.

7 Section 678.

8 Sections 675(1.1) and 676(1.1).